Act of Sederunt (Taxation of Judicial Expenses Rules) 2019

CHAPTER 1 CITATION, APPLICATION AND INTERPRETATION ETC.

Citation and commencement, etc.

1.1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019.

(2) It comes into force on 29th April 2019.

(3) A certified copy is to be inserted in the Books of Sederunt.

Application

1.2.—(1) Subject to paragraphs (3) and (4), these Rules apply to the taxation of accounts of expenses, and for related purposes, where—

(a) the expenses were incurred in—

(i) proceedings in the Court of Session;

(ii) proceedings in the Sheriff Appeal Court; or

(iii) proceedings, other than a summary cause, in the sheriff court;

(b) the proceedings were commenced on or after the coming into force of these Rules; and

(c) the taxation is pursuant to a finding that a party (“the paying party”) is liable in expenses to another party (“the entitled party”).

(2) For the purposes of paragraph (1)(b)—

(a) proceedings in the Sheriff Appeal Court; and

(b) proceedings in the Inner House of the Court of Session under Chapters 38, 39 or 40 of the Rules of the Court of Session 1994(1), other than on remit from the Sheriff Appeal Court,

are distinct proceedings.

(3) Chapter 7 (payments to witnesses and fees of shorthand writers) and schedules 6 and 7 apply in relation to proceedings referred to in paragraphs (1)(a) and (b).

(4) Chapter 8 (diligence) applies where the chargeable work was carried out on or after the coming into force of these Rules.

Interpretation

1.3.—(1) In these Rules—

“counsel” means an advocate or solicitor advocate;

“the court” in relation to proceedings in the sheriff court means the sheriff;

“member of the Association of Commercial Attorneys” means a person who has rights to conduct litigation or rights of audience by virtue of the scheme to which effect was given by Act of Sederunt (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) (Association of Commercial Attorneys) 2009(2);

“paying party” and “entitled party” have the meaning given in rule 1.2(1)(c);

“solicitor advocate” means a solicitor having a right of audience in the Court of Session under section 25A of the Solicitors (Scotland) Act 1980(3);

“summary cause” means proceedings, subject to the procedure introduced by section 35 of the Sheriff Courts (Scotland) Act 1971(4).

(2) In relation to simple procedure cases—

(a) references to the taxation of an account of expenses include the assessment of an account of expenses, and

(b) references to the Auditor include the sheriff clerk.

(3) A charge or a fee relating to a document or communication that is prescribed by reference to a number of words is chargeable in respect of each multiple of that number of words or part thereof.

CHAPTER 2 GENERAL PRINCIPLES

Form of account

2.1.  An account of expenses must—

(a) set out in chronological order all items in respect of which payment is claimed;

(b) list in separate columns—

(i) the charges claimed for work carried out by the entitled party’s solicitor; and

(ii) the outlays claimed; and

(c) include a statement as to whether or not the entitled party will bear the burden of the value added tax referred to in rule 6.1.

General principles

2.2.—(1) The Auditor is to allow only such expenses as are reasonable for conducting the proceedings in a proper manner.

(2) The Auditor may in particular refuse to allow—

(a) expenses that the Auditor considers to have been incurred as a result of fault or error on the part of the entitled party or the entitled party’s representative; and

(b) expenses relating to a part of the proceedings in which the Auditor considers that the entitled party was unsuccessful.

CHAPTER 3 CHARGES FOR WORK CARRIED OUT BY SOLICITORS

Application

3.1.—(1) Subject to rule 3.10 (party litigants), this Chapter, and the tables of charges set out in schedules 1 to 5, apply for the purpose of determining the charges to be allowed on taxation in respect of work carried out by the entitled party’s solicitor.

(2) Where the entitled party was represented by a member of the Association of Commercial Attorneys this Chapter, rule 5.2 (additional charge), and the tables of charges in schedules 1, 3, 4 and 5 apply as if the work charged for was carried out by a solicitor.

The unit

3.2.  In this Chapter, in Chapter 8, and in schedules 1 to 5, references to a “unit” are to a measure of monetary charge with a value of £16.40.

Table of charges

3.3.—(1) Paragraph (2) applies to proceedings in respect of which there is a table of inclusive charges applicable to the proceedings in schedule 2, 3 or 4.

(2) The charges to be allowed are those specified in—

(a) the table of detailed charges in schedule 1; or

(b) the applicable table of inclusive charges in—

(i) for proceedings in the Court of Session, schedule 2;

(ii) for proceedings in the Sheriff Appeal Court, schedule 3; or

(iii) for ordinary actions in the sheriff court, schedule 4,

as the entitled party may elect, but the entitled party may not elect to have an account taxed partly on one basis and partly on another.

(3) Subject to paragraph (4), the charges to be allowed where there is no table of inclusive charges applicable to the proceedings are those specified in the table of detailed charges in schedule 1.

(4) Subject to rule 3.7 (simple procedure), the charges to be allowed in respect of a simple procedure case in the sheriff court(5) are those specified in the applicable table of inclusive charges in schedule 5.

(5) This rule applies unless the court otherwise directs.

Copying and scanning

3.4.—(1) This rule applies to the copying or scanning of documents carried out by, or at the instance of, the entitled party’s solicitor, other than on payment of a charge to a third party (in which event Chapter 4 applies).

(2) Where the Auditor is satisfied that the number of pages reasonably copied or scanned was in excess of 2000, the Auditor may allow the charge mentioned in paragraph (3), but only in respect of those pages which exceed 2000.

(3) The charge is 1 unit per 100 pages copied or scanned, or part thereof.

Travel time

3.5.  The Auditor may, on cause shown, and at the Auditor’s discretion, allow a charge of 0.9 units per 6 minutes in respect of time engaged in travelling by the entitled party’s solicitor.

Modification of inclusive charges

3.6.  In appropriate circumstances the Auditor may, in respect of a charge specified in a table of inclusive charges—

(a) increase or reduce a charge; or

(b) apportion a charge between parties represented by different solicitors.

Simple procedure

3.7.—(1) This rule applies where an account of expenses falls to be taxed by reference to a table of charges in schedule 5.

(2) All charges allowed by the Auditor are to be reduced by 10%.

(3) Unless the court otherwise directs, where the total value of the claim is £2500 or less, all charges allowed by the Auditor, as reduced in accordance with paragraph (2), are to be further reduced—

(a) where the total value of the claim is less than £1000, by 50%;

(b) otherwise by 25%.

Instructing and attending with counsel

3.8.—(1) Subject to paragraph (2), where fees of counsel are allowed as an outlay in the sheriff court or Sheriff Appeal Court, the Auditor is also to allow the applicable charge for instructing counsel.

(2) Where the fees allowed are those of a solicitor advocate, paragraph (1) does not apply unless the solicitor advocate is acting on the instructions of another solicitor.

(3) Paragraph (4) applies where—

(a) a solicitor advocate exercises a right of audience in the Court of Session; or

(b) fees of a solicitor advocate are allowed as an outlay in the sheriff court or Sheriff Appeal Court in accordance with rule 4.3 (fees of counsel in the sheriff court or Sheriff Appeal Court).

(4) Where the solicitor advocate is assisted by another solicitor or a clerk the Auditor may allow the applicable attendance charge.

Additional charge

3.9.  Where, on an application under rule 5.2 (additional charge)—

(a) the court grants the application and specifies a percentage increase in charges in accordance with paragraph (4) of that rule, the charges allowed by the Auditor under this Chapter are to be increased by the percentage specified;

(b) the Court of Session remits to the Auditor to determine if an increase should be allowed, or to determine the level of an increase, the charges allowed by the Auditor under this Chapter are to be increased by such additional charge, if any, as the Auditor may determine.

Party litigants

3.10.—(1) Where the entitled party was not represented by a solicitor the Auditor may, subject to paragraph (3), allow a reasonable sum in respect of work done by the entitled party which was reasonably required in connection with the proceedings.

(2) In determining what would be a reasonable sum the Auditor is to have regard to all the circumstances, including—

(a) the nature of the work;

(b) the time required to do the work;

(c) the amount of any earnings lost during that time;

(d) the importance of the proceedings to the entitled party; and

(e) the complexity of the issues involved in the proceedings.

(3) Any sum allowed under this rule must not exceed two thirds of the charges that would be allowed under this Chapter if the same work had been done by a solicitor.

CHAPTER 4 OUTLAYS

Application

4.1.  This Chapter applies for the purpose of determining the outlays incurred by, or on behalf of, the entitled party that are to be allowed at taxation.

Allowance of outlays

4.2.  Subject to rules 4.3 to 4.5, outlays reasonably incurred in order to conduct the proceedings in a proper manner are to be allowed.

Fees of counsel in the sheriff court or Sheriff Appeal Court

4.3.—(1) This rule applies to the taxation of accounts of expenses relating to proceedings in the sheriff court or Sheriff Appeal Court.

(2) No fees are to be allowed for the work of counsel unless the proceedings, or particular work involved in the conduct of the proceedings, have been sanctioned as suitable for the employment of counsel in accordance with rule 5.4 (sanction for the employment of counsel in the sheriff court and Sheriff Appeal Court).

(3) Where particular work has been sanctioned as suitable for the employment of counsel the Auditor is to allow the reasonable fees of counsel for—

(a) doing that work, and

(b) subject to paragraph (6), consultations reasonably required in relation to that work.

(4) Where the proceedings have been sanctioned as suitable for the employment of counsel—

(a) it is for the Auditor to determine the work in relation to which it was reasonable for counsel to be instructed;

(b) subject to sub-paragraph (c), the Auditor is to allow the reasonable fees of counsel for carrying out that work;

(c) subject to paragraph (3), no fees are to be allowed for work carried out before the date on which sanction was granted unless the proceedings are—

(i) proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993(6);

(ii) a simple procedure case; or

(iii) proceedings in the Sheriff Appeal Court.

(5) In the determination of reasonable fees for the purposes of paragraphs (3) and (4), the Auditor must disregard the fact that counsel who carried out the work was senior counsel unless the proceedings, or the particular work, have been sanctioned as suitable for the employment of senior counsel.

(6) Except on cause shown, the Auditor is to allow fees for only two consultations in the course of proceedings.

(7) In this rule, references to fees of counsel for carrying out work include, where appropriate in the case of proofs, trials or other hearings that do not proceed, fees reflecting counsel’s inability to accept alternative commitments.

Fees of solicitor advocates in the Court of Session

4.4.  Where a solicitor advocate exercises a right of audience in the Court of Session, the Auditor is to allow such fee for each item of work done by the solicitor advocate in the exercise of the right of audience as the Auditor would allow to an advocate for an equivalent item of work.

Skilled persons

4.5.—(1) No charge incurred to a person who has been engaged for the purposes of the application of that person’s skill is to be allowed as an outlay unless—

(a) the person has been certified as a skilled person in accordance with rule 5.3 (certification of skilled persons); and

(b) except where paragraph (4) applies, the charge relates to work done, or expenses incurred, after the date of certification.

(2) Where a person has been so certified, the Auditor is to allow charges for work done or expenses reasonably incurred by that person which were reasonably required for a purpose in connection with the proceedings, or in contemplation of the proceedings.

(3) The charges to be allowed under paragraph (2) are such charges as the Auditor determines to be fair and reasonable.

(4) This paragraph applies where—

(a) the account relates to—

(i) proceedings subject to Chapter 43 of the Rules of the Court of Session 1994;

(ii) proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993; or

(iii) a simple procedure case; or

(b) the sheriff has determined in accordance with rule 5.3(5) that the certification has effect for the purposes of work done, or expenses incurred, before the date of certification.

Witnesses

4.6.—(1) Payments relating to the attendance of a witness at a proof or trial, when the witness is not called to give evidence, are to be allowed as an outlay only where the court has granted a motion certifying the witness as being in attendance.

(2) Payments to witnesses are to be aggregated in the account as a single outlay, and the details of the payments are to be entered in a separate schedule appended to the account.

(3) Receipts and vouchers for all payments claimed are to be produced to the paying party prior to the taxation, and to the Auditor if the Auditor so requires.

CHAPTER 5 APPLICATIONS FOR ALLOWANCE OF AN ADDITIONAL FEE, FOR SANCTION FOR THE EMPLOYMENT OF COUNSEL, AND FOR CERTIFICATION OF SKILLED WITNESSES

Application

5.1.—(1) This Chapter applies for the purpose of applications to the court for—

(a) the allowance of an additional charge;

(b) the certification of skilled witnesses; and

(c) sanction for the employment of counsel in the sheriff court and Sheriff Appeal Court.

(2) Applications to which this Chapter applies are to be made—

(a) in a simple procedure case by incidental orders application;

(b) otherwise by motion.

Additional charge

5.2.—(1) An entitled party may apply to the court for an increase in the charges to be allowed at taxation in respect of work carried out by the entitled party’s solicitor.

(2) Where the application is made to the Court of Session the court may, instead of determining the application, remit the application to the Auditor to determine if an increase should be allowed, and the level of any increase.

(3) The court or, as the case may be, the Auditor must grant the application when satisfied that an increase is justified to reflect the responsibility undertaken by the solicitor in the conduct of the proceedings.

(4) On granting an application the court must, subject to paragraph (5), specify a percentage increase in the charges to be allowed at taxation.

(5) The Court of Session may instead remit to the Auditor to determine the level of increase.

(6) In considering whether to grant an application, and the level of any increase, the court or, as the case may be, the Auditor is to have regard to—

(a) the complexity of the proceedings and the number, difficulty or novelty of the questions raised;

(b) the skill, time and labour and specialised knowledge required of the solicitor;

(c) the number and importance of any documents prepared or perused;

(d) the place and circumstances of the proceedings or in which the work of the solicitor in preparation for, and conduct of, the proceedings has been carried out;

(e) the importance of the proceedings or the subject matter of the proceedings to the client;

(f) the amount or value of money or property involved in the proceedings;

(g) the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing.

Certification of skilled persons

5.3.—(1) On the application of a party the court may certify a person as a skilled person for the purpose of rule 4.5 (skilled persons).

(2) The court may only grant such an application if satisfied that—

(a) the person is a skilled person; and

(b) it is, or was, reasonable and proportionate that the person should be employed.

(3) The refusal of an application under this rule does not preclude the making of a further application on a change of circumstances.

(4) Where the application is made in proceedings other than—

(a) proceedings subject to Chapter 43 of the Rules of the Court of Session 1994;

(b) proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993; or

(c) a simple procedure case,

paragraph (5) applies.

(5) Where this paragraph applies, the court may only determine that the certification has effect for the purposes of work already done by the person where the court is satisfied that the party applying has shown cause for not having applied for certification before the work was done.

Sanction for the employment of counsel in the sheriff court and Sheriff Appeal Court

5.4.—(1) This rule applies to proceedings in the sheriff court and Sheriff Appeal Court.

(2) On the application of a party the court may, subject to paragraphs (4) to (6), sanction—

(a) the proceedings;

(b) any part of the proceedings;

(c) particular work involved in the conduct of the proceedings; or

(d) any combination of (a), (b) and (c),

as suitable for the employment of counsel by that party.

(3) Where proceedings or work are sanctioned as suitable for the employment of senior counsel, or as suitable for the employment of more than one counsel, the interlocutor must record that.

(4) Paragraphs (5) and (6) apply where the application is made in proceedings other than—

(a) proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993;

(b) a simple procedure case; or

(c) proceedings in the Sheriff Appeal Court.

(5) An interlocutor sanctioning proceedings, or a part of proceedings, as suitable for the employment of counsel has no effect as regards work carried out by counsel before the date of the interlocutor.

(6) The court may only sanction particular work already carried out as suitable for the employment of counsel when satisfied that the party applying has shown cause for not having applied for sanction before the work was carried out.

(7) The refusal of an application under this rule does not preclude the making of a further application on a change of circumstances.

CHAPTER 6 VALUE ADDED TAX

Value added tax

6.1.—(1) Where work done by a solicitor constitutes a supply of services in respect of which value added tax is chargeable by the solicitor, there may be added to the charges allowed in respect of that work under Chapter 3 an amount equal to the value added tax chargeable on those charges, unless the entitled party will not bear the burden of the value added tax.

(2) Where an outlay allowed under Chapter 4 is a charge for the supply of goods or services on which the supplier has charged value added tax, the amount of the value added tax charged may only be allowed as an outlay when the entitled party will bear the burden of the value added tax.

CHAPTER 7 PAYMENTS TO WITNESSES AND FEES OF SHORTHAND WRITERS

Reimbursement of witnesses

7.1.  Schedule 6 has effect for the purpose of regulating the liability of a party at whose instance a person was cited or requested to appear as a witness in civil proceedings, to reimburse losses and expenses incurred by that person.

Fees of shorthand writers and transcribers

7.2.—(1) The table in Part 1 of schedule 7 has effect for the purpose of regulating the fees charged by shorthand writers and persons preparing transcripts of evidence.

(2) The table in Part 2 of schedule 7 has effect for the purpose of regulating the expenses that may be charged by a shorthand writer instructed to attend a proof, jury trial or commission, in so far as reasonably incurred.

(3) Value added tax may be added to the fees and expenses chargeable where the shorthand writer or transcriber is required to charge value added tax.

CHAPTER 8 DILIGENCE

Instructing steps in diligence

8.1.  Where, in the execution of diligence, the expenses chargeable against a debtor include the expenses incurred by a solicitor in instructing a messenger-at-arms or sheriff officer to take any step, the sum chargeable for each such instruction is 1.25 units.

CJM SUTHERLAND

Lord President

I.P.D.

Edinburgh

27th February 2019